Lanier v. US.

• Decision Date: 02 November 1999
• Docket Number: No. 98-2689,98-2689
• Parties: (7th Cir. 2000) Randy T. Lanier, Petitioner-Appellant, v. United States of America, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 833

220 F.3d 833 (7th Cir. 2000)

Randy T. Lanier, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

No. 98-2689

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

November 2, 1999, Argued

February 9, 2000, Decided

As Amended June 12, 2000.

[Copyrighted Material Omitted]

Robert W. Ritchie, RITCHIE, FELS & DILLARD, Knoxville, TN, for Petitioner - Appellant

Michael Thompson, (argued), OFFICE OF THE UNITED STATES ATTORNEY, Criminal Division, Fairview Heights, IL, Michael C. Carr, OFFICE OF THE UNITED STATES ATTORNEY, Benton, IL, for Respondent - Appellee.

Before Cudahy, Coffey and Kanne, Circuit Judges.

Kanne, Circuit Judge.

We once reviewed the convictions of Randy Thomas Lanier on direct appeal in United States v. Kramer, 955 F.2d 479 (7th Cir. 1992), and he appears before us again under 42 U.S.C. sec. 2255. Seven years ago, we affirmed his convictions for conspiracy to distribute marijuana and participation in a continuing criminal enterprise. Lanier now asks us to reconsider his convictions in light of two recent Supreme Court rulings: Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999), and Rutledge v. United States, 517 U.S. 292, 134 L. Ed. 2d 419, 116 S. Ct. 1241 (1996). We agree that his convictions violatedthe holdings of both cases but, unfortunately for Lanier, find that this changes little for him. We affirm the district court decision to vacate Lanier's conspiracy conviction but let the CCE conviction and its life sentence stand in light of Rutledge; we find that the trial court committed harmless error under Richardson.

I. History

Randy Thomas Lanier enjoyed success in auto racing during the early 1980s and won rookie of the year honors at the Indianapolis 500 in 1986. The cash rewards of racing provided him venture capital for the lucrative sideline occupation of directing a drug-dealing enterprise that imported several hundred tons of marijuana into the United States. We described his operation more fully on direct appeal in Kramer, 955 F.2d at 482-83. Lanier's drug enterprise collapsed when he and two confederates were arrested and charged with (1) conspiracy to distribute marijuana under 21 U.S.C. sec. 846 and 21 U.S.C. sec. 841 (a)(1); (2) participation as a principal administrator, organizer or leader of a continuing criminal enterprise ("CCE") under 21 U.S.C. sec. 848; and (3) conspiracy to commit federal tax fraud under 18 U.S.C. sec. 371.

Their trial began on January 26, 1988, and ran fourteen weeks before Judge James Foreman in the United States District Court for the Southern District of Illinois. Pursuant to Seventh Circuit precedent at the time, Judge Foreman did not instruct the jury that it must agree unanimously beyond a reasonable doubt which underlying violations constitute the "continuing series" for a CCE conviction. After five days of deliberation, during which the jury spent most of its time considering the CCE charges and deadlocked five times, the jury convicted all three defendants on all counts.

For the CCE conviction, Lanier was sentenced to the mandatory term of life imprisonment without possibility of parole. Lanier also received a forty-year term of imprisonment for conspiracy and a five-year term for tax fraud added consecutively to the end of his forty-year sentence, with the forty-five-year cumulative sentence to run concurrently with his life sentence for CCE. Finally, the jury found Lanier liable for $ 60 million in criminal forfeitures relating to his CCE conviction.

During the forfeiture proceeding, the government requested a total forfeiture of almost $ 68 million for Lanier's participation in seven different drug shipments. The government claimed the following sums as Lanier's shares of the profits from the seven shipments: $ 2.2 million and $ 3 million for two shipments to Melbourne, Florida; $ 3 million for a Bridgeport, Connecticut, shipment; $ 12.8 million for a shipment to New York, New York; $ 15.5 million and $ 15 million for two Redwood City, California, shipments; $ 16.5 million for a New Orleans, Louisiana, shipment. The jury found Lanier liable for $ 60 million total in criminal forfeitures but returned its verdict without specifying the shipments in which Lanier had participated.

Lanier and two co-defendants appealed their CCE and conspiracy convictions, launching a flurry of assorted claims including two that are presented again in Lanier's sec. 2255 petition. We rejected all their claims in Kramer on January 30, 1992. 955 F.2d 479.

On February 20, 1996, Lanier filed this sec. 2255 petition. He offered two claims not argued on direct appeal: (1) civil forfeiture of his property in an earlier proceeding constituted punishment for his crimes so his subsequent criminal convictions in a later proceeding violated the double jeopardy prohibition on successive punishment; (2) double jeopardy barred contemporaneous convictions for CCE and conspiracy to distribute. On April 23, 1997, before the district court ruled on Lanier's pending sec. 2255 petition, Lanier filed a supplement to his original petition, in which he added two arguments previously raised in his direct appeal: (1) the district court erred by failing to instruct the jury that it must agree unanimously which underlying crimes constitute the "continuing series" necessary for a CCE conviction; (2) the district court erred by permitting the jury to rely on the conspiracy charge as one of the violations within the continuing series even though some of the predicate acts for the conspiracy fell outside the statute of limitations for CCE offenses.

On March 5, 1998, the district court granted Lanier's petition by vacating the conspiracy conviction in light of Rutledge, subject to reinstatement if the CCE conviction is overturned, and applied Lanier's fifty dollar special assessment fee to Lanier's criminal forfeiture judgment. However, the district court let stand Lanier's CCE conviction and life sentence and denied Lanier's petition on all other grounds. Lanier now appeals the district court's decision to vacate his conspiracy conviction rather than his CCE conviction and the denial of his petition with respect to his Richardson and statute of limitations claims.

II. Analysis

We review de novo a district court's denial of a motion under sec. 2255 to vacate, alter or amend criminal sentences. See Gray-Bey v. United States, 156 F.3d 733, 737 (7th Cir. 1998), cert. denied, 119 S. Ct. 849 (1999). We review a district court's resentencing decisions under sec. 2255 for abuse of discretion. See United States v. Smith, 103 F.3d 531, 534 (7th Cir. 1996) (entrusting to the district court's discretion the restructuring of the defendant's sentence when vacatur of a conviction is required under sec. 2255).

A. Absence of Richardson Jury Instructions

A jury found Lanier guilty of both conspiracy to distribute controlled substances in violation of 21 U.S.C. sec. 846 and conducting a continuing criminal enterprise in violation of 21 U.S.C. sec. 848. Section 848 defines CCE as "a continuing series of violations" of drug offenses undertaken in concert with five or more other persons with respect to whom the defendant occupies a position of organizer, supervisor or manager. See 21 U.S.C. sec. 848. Conviction for CCE requires a unanimous finding that the defendant committed a "continuing series of violations," but Seventh Circuit precedent at the time of Lanier's trial and direct appeal did not mandate a jury instruction requiring jury unanimity regarding which specific violations form the continuing series. See Kramer, 955 F.2d at 486-87. We so held in Kramer, where we rejected Lanier's unanimity instruction argument on direct appeal and affirmed his conviction. Id.

In March 1999, the district court rejected this unanimity instruction claim in Lanier's sec. 2255 petition, reasoning that Lanier was barred from arguing this claim under sec. 2255 because he already raised and lost this issue in Kramer. However, the Court's decision in Richardson in June 1999 represents changed circumstances of law since Kramer, which permits Lanier to present his claim here under sec. 2255. We now reconsider whether the absence of a unanimity instruction, which Lanier presciently requested at trial, requires reversal of Lanier's CCE conviction.

Before the Supreme Court decided Richardson, the circuits split on the issue whether a CCE conviction requires jury unanimity regarding which violations constitute the continuing series. Compare Richardson v. United States, 130 F.3d 765, 779 (7th Cir. 1997) (holding that jury unanimity is not required), vacated by Richardson, 526 U.S. 813, 143 L. Ed. 2d 985, 119 S. Ct. 1707 (1999), United States v. Hall, 93 F.3d 126, 129 (4th Cir. 1996) (same), and United States v. Anderson, 309 U.S. App. D.C. 54, 39 F.3d 331, 350-51 (D.C. Cir. 1994) (same), with United States v. Edmonds, 80 F.3d 810, 822 (3d Cir. 1996) (ruling that the jury must unanimously agree on which violations constitute the continuing series). In Richardson, the Supreme Court held that a jury must agree unanimously on which specific predicate acts constitute the "continuing series of violations" for a CCE conviction. 119 S. Ct. at 1710-13. The Court decided that each predicate violation within the series is itself an element of the CCE offense and that the jury must agree unanimously not only that the defendant committed a "continuing series of violations" but agree unanimously also about which violations the series comprised. See id. Thus, a defendant is entitled to an instruction that the jury must agree unanimously which specific acts support the CCE conviction. See id. Otherwise, a jury could convict a defendant even though some jurors found that the CCE conviction is based on one set of continuing violations while other jurors found that it is based on a different set of continuing violations.

We note quickly that Teague v. Lane, 489 U.S....